Date: Mon, 8 May 2006 13:27:14 -0600

From: Lewis Klar

Subject: Childs v Desomeaux

A few observations on Childs and the way the Supreme Court of Canada is dealing with duty issues:

As to the foreseeability issue raised by Neil and Benjamin. I agree with them that the Court's treatment of it is very problematic and puzzling. It has been bothering me since I read the judgment, because the Court is unnecessarily complicating an issue which up to now has been quite straightforward. Foreseeability at the level of duty is in my opinion a very general question. The question in this case should have been simply "Is it reasonably foreseeable that if a host of a party acts negligently and allows his/her guests to get drunk and drive home, a third party might be injured? Yes or No?" The answer is obviously "yes" and the Court should have quickly moved on to the next steps of duty (proximity and policy) and then on to breach. By deciding foreseeability based on the facts of each case the Court is turning back the clock to pre-Donoghue v Stevenson and compartmentalizing the duty issue into specific fact situations. This is what a generalized concept of duty was meant to do away with. One would have thought this point is well understood and certainly has been explained often enough by commentators, judges etc. Now why McLachlin CJ did this is very puzzling. My uncharitable side says that it is because she simply got it wrong, did not think it through and now has made another unnecessary "gloss" on the duty issue. I fear that it will confuse courts, be abused by those who want to deny duty, will confuse law students and lawyers. It will take a "clarification" or "refinement" by the Supreme Court in a future case to explain to everyone that we have misunderstood this judgment and this is not what they meant to say. Good grief!

As to the issue of "novel" categories. This is another ill-conceived invention of the McLachlin Court. As I have written, there is simply no sensible way to know when one is leaving an established category and moving into a novel one. One can look at each new fact situation and call it a new category or alternatively call it an established category or a category analogous to an established category. A myriad of judgments, since McLachlin CJ came up with this idea in Cooper v Hobart, have decided that every new fact situation is a new category, allowing them to shoot down the case based on no duty due to no proximity. It does not work as an idea and never will.

As to the core of the judgment itself, I am pleased with it. It reaffirms and reinforces the argument that tort law and morality are different, that there is no positive duty to act to assist others in danger, that unless one is in a "special relationship" with the victim, or in this case the wrongdoer, which requires you to control his/her behaviour for the protection of others, or for their own protection, you have no tort duty to do so. The point which I made in the earlier discussion that merely hosting a party is not an act in itself which sufficiently creates a risk of injury which distinguishes the host from all other disinterested strangers (legally speaking) is I think the essence of this judgment. The Court did not, at least explicitly, go as far as I would however in my insistence that the Court should first find that the active creation of the risk of danger was unreasonable and that is why the creator of the risk is obliged to prevent future harm from arising. Perhaps the Court did this implicitly by finding that since all that the host did was to host a party that it did not do anything unreasonably which imposed extra duties on him. The Court for example says that if the social host continued to serve alcohol to a visibly inebriated person knowing that he or she would be driving home it arguably has become implicated in the risk. In short creation of risk is not by itself enough. In my mind it requires a creation of a risk where there is the expectation that the creator will assist (due to a previous undertaking, a situation of control/vulnerability, socially or legally imposed expectations) and there is hence a reliance on this undertaking, or where the creation is unreasonable, when a duty is imposed. The Court's attempt to justify the imposition of a duty on a commercial host based on this type of expectation is not that persuasive to me, but at least it explains it.

The Court also left open the possibility that even if all of the above requirements were established, policy might still defeat the duty. Another interesting idea, and one which the Court probably should have dealt with now, rather than leave it to more litigation.

Lewis Klar
Professor of Law
University of Alberta

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